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The Final Provocation

Despite the overwhelming negative response to the Research Works Act from the science community, at least as indicated by the faculty blogs John DuPuis links to (what, still no bullet summary, John?), I’m not quite ready to agree with the Library Loon that the shoe is on the other foot. She opines, correctly I believe, that “Faculty don’t like to hear ‘don’t.’ Not from librarians, and not even from publishers.” One example supporting this claim is this English professor’s refusal to sign away his copyright to Oxford University Press. “I am unwilling,” he writes, “to countenance such an abridgement of my ability to make the words that I have written more freely available.” He maintains that scholarly publications are the work of the author and not the publisher.

However, even if the Research Works Act became law, it wouldn’t be telling faculty they can’t do something. It would be telling Federal agencies that they couldn’t do something, which is a different thing. From the bill text:

No Federal agency may adopt, implement, maintain, continue, or otherwise engage in any policy, program, or other activity that–

(1) causes, permits, or authorizes network dissemination of any private-sector research work without the prior consent of the publisher of such work; or

(2) requires that any actual or prospective author, or the employer of such an actual or prospective author, assent to network dissemination of a private-sector research work.

As far as I can tell from the text of the bill, though, there’s no stipulation that the authors of research articles can’t post those articles on their own websites or in institutional repositories. It just says that the government can’t force them to do that as a condition of funding.

But, theoretically, the publishers supporting the Research Works Act should want to go further than stopping Federal open access mandates. In the press release opposing the NIH policy that spurred action against it, the Association of American Publishers, they make the following arguments against open access:

When an author asks a publisher to publish a research article, the author agrees to transfer copyright so the publisher will undertake the effort and expense of preparing the article for final publication. The publisher relies on holding copyright to enable it to recoup publication costs and continue to invest in scientific communication. The full benefit of copyright protections is weakened when authors are required to permit NIH to make their journal articles available to the public for free. Moreover, the mandated access policy gives publishers little or no subsequent safeguards from piracy.

Presumably, “the full benefit of copyright protections is weakened when authors” post their work online period, even on their own websites or institutional repositories. How could that not be the case? And if it is the case, then the AAP and others must also be opposed to all such “network dissemination” of research, even if the research isn’t publicly funded by a Federal agency.

Thus, theoretically, the anti-OA publishers should be opposed to the institutional open access policies implemented by Harvard and Princeton and others in the past few years. The faculty of both universities supported making their work more accessible. The faculty at Princeton voted unanimously to adopt an open access policy. It’s not a mandate, because faculty can seek waivers for particular articles, but it’s a sweeping policy that forcefully states the desire to make research publicly accessible and to not give away all rights to publishers. Granted, Harvard and Princeton are private universities, but policies like these still run afoul of the publisher’s arguments against Federal mandates. Articles published in journals from Elsevier by leading researchers will also be freely available online.

The final provocation of the faculty will come when publishers start paying for legislation making institutional open access policies and personal “networked dissemination” of one’s own research illegal. That will be the moment when faculty start hearing “don’t” from publishers, because that will be the moment that publishers try to deliberately and publicly interfere with decisions about their institutions or their research that the faculty have made themselves. When or if that time comes, we might finally see widespread revolt against the worst abuses of commercial scholarly publishers. The question is whether in their drive for profits the offensive publishers will finally be brazen enough to alienate the community that provides all their free content.

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5 thoughts on “The Final Provocation”

Link harvesting is enough for me at this point. It’s more work than it appears at first glance. I’m kind of hoping that the next time publishers try and pull the wool over our eyes it will be at a less busy time of year.

The US Research Works Act (H.R.3699): “No Federal agency may adopt, implement, maintain, continue, or otherwise engage in any policy, program, or other activity that — (1) causes, permits, or authorizes network dissemination of any private-sector research work without the prior consent of the publisher of such work; or (2) requires that any actual or prospective author, or the employer of such an actual or prospective author, assent to network dissemination of a private-sector research work.”

Translation and Comments:

“If public tax money is used to fund research, that research becomes “private research” once a publisher “adds value” to it by managing the peer review.”

[Comment: Researchers do the peer review for the publisher for free, just as researchers give their papers to the publisher for free, together with the exclusive right to sell subscriptions to it, on-paper and online, seeking and receiving no fee or royalty in return].

“Since that public research has thereby been transformed into “private research,” and the publisher’s property, the government that funded it with public tax money should not be allowed to require the funded author to make it accessible for free online for those users who cannot afford subscription access.”

[Comment: The author’s sole purpose in doing and publishing the research, without seeking any fee or royalties, is so that all potential users can access, use and build upon it, in further research and applications, to the benefit of the public that funded it; this is also the sole purpose for which public tax money is used to fund research.]”

H.R. 3699 misunderstands the secondary, service role that peer-reviewed research journal publishing plays in US research and development and its (public) funding.

It is a huge miscalculation to weigh the potential gains or losses from providing or not providing open access to publicly funded research in terms of gains or losses to the publishing industry: Lost or delayed research progress mean losses to the growth and productivity of both basic research and the vast R&D industry in all fields, and hence losses to the US economy as a whole.

What needs to be done about public access to peer-reviewed scholarly publications resulting from federally funded research?

The minimum policy is for all US federal funders to mandate (require), as a condition for receiving public funding for research, that: (i) the fundee’s revised, accepted refereed final draft of (ii) all refereed journal articles resulting from the funded research must be (iii) deposited immediately upon acceptance for publication (iv) in the fundee’’s institutional repository, with (v) access to the deposit made free for all (OA) immediately (no OA embargo) wherever possible (over 60% of journals already endorse immediate gratis OA self-archiving), and at the latest after a 6-month embargo on OA.

I don’t know about that – or I think you’re half right. Faculty (it seems to me) are less interested in local IRs than in being part of a national effort to make research output more available. Passing a mandate is one thing; living by it is another. But I think you are right, that what might rile faculty is if publishers started hassling them more systematically for posting their research online or sharing PDFs through their social networks – which many do, blissfully unaware of or uninterested in the fact that they have agreed that they have no legal right to do anything with their work in that form.

I’ll settle for half right. The values of the faculty clash with the values of the publishers, and up until now it hasn’t mattered very much, since faculty do share willingly with one another. I doubt publishers will take the logical next step and start treating professors like “pirates,” but if they did it would be an interesting battle.